Alhaji Mudashiru Kokoro-owo & Ors V. Lagos State Government & Ors (2001)
LAWGLOBAL HUB Lead Judgment Report
WALI, J.S.C.
he main issue in contest in this appeal is whether a grant of a Statutory Right of Occupancy (C of O) by the respondents to Oniru Chieftaincy Family over a parcel of land in which the latter had a customary title originally, is a re-allocation of the same parcel of land within the con of the order of interlocutory injunction made by the Court of Appeal not to re-allocate the land in dispute pending the determination of the appeal.
It is pertinent to set out the relevant facts involved in this case which are as follows:-
By a gazette notice published as Notice No. 173 in the Lagos State Gazette No.20 Vol. 5 of 18th August, 1972, the Lagos State Government compulsorily acquired the parcel of land consisting on,100 acres known as Maroko in Eti-Osa Local Government and paid compensation of N6,800,000.00 to the Oniru Chieftaincy Family which claimed to own the land so acquired, under customary law.
In 1990, the Lagos State Government embarked upon a programme of sand filling of the area so acquired as a result of which it had to evacuate the unauthorized occupiers and the destruction of the illegal structures erected therein by them.
As a result of the evacuation, the appellants as plaintiffs filed an application in the Lagos High Court for leave to file an originating summons against the respondents as defendants to enforce their fundamental Human Rights to wit:
“1. The scheduled, forceful evacuation and demolition of houses in Maroko, Lagos State, (wherein the Applicants are resident) violates the rights of the Applicants to dignity as human beings, privacy, freedom of movement and residence anywhere within Nigeria, and peaceful enjoyment of their property as guaranteed by Sections 31, 34 and 40 respectively of the Constitution of the Federal Republic of Nigeria, 1979 (as amended).
- The scheduled, forceful evacuation and demolition do not conform with the procedures prescribed under Section 40 of the Constitution of the Federal Republic of Nigeria for compulsory possession of property.
- The scheduled, forceful evacuation and demolition do not conform with the procedures prescribed by the PUBLIC LANDS ACQUISITION LAW (CAP. 113) Laws of Lagos State (as amended), and is therefore totally unlawful, null, and void.”
This was filed on 11/7/90. In addition to the reliefs above, the appellants also prayed for an interlocutory injunction pending the determination of the case.
On 16/7/90, the learned trial judge Okunola, J., (as he then was) refused the application stating that the issue involved did not relate to the enforcement of the applicants’ proprietary right under the Fundamental Rights [Enforcement Procedure] Rules, 1979 and advised the applicants to file their Writ and Statement of Claim and bring the necessary motion whereby the other party will be put on notice.
As regards the application for the interlocutory injunction, the learned trial judge, in refusing to grant the relief, reasoned as follows-
“I wish to say that the application before me is for an order to restrain the respondents herein from carrying into effect the forceful evacuation and demolition of residences in Maroko, which from the evidence reviewed above and concurred to by learned applicants Counsel have substantially been demolished. Since the basis of the application is gone any action taken will amount to an exercise in futility, moreso, when it is trite that Equity does not act in vain.”
Henceforth, the applicants and the respondents shall be referred to as the appellants and the respondents respectively. The appellants appealed against the ruling of the trial Court to the Court of Appeal, Lagos Division by a Notice of Appeal dated 11/2/91. On 15/12/94 they filed an application Dated 14/12/94 in that court for-
“AN ORDER of committal to prison of the respondents on the grounds that the issuance of the aid Certificate of Occupancy and the Supplemental Deed by the respondents is in disobedience of the injunctive orders Of this Honourable Court made on the 11th day of February , 1991, restraining the respondents from re-allocating any part of the Maroko Land, the subject matter of this appeal”
In the alternative the appellants prayed the Court of Appeal to cancel the Certificate of Occupancy dated 10/12/91 issued in favour of Oniru Chieftaincy Family.
From the sequence of events in the proceedings in this court it appears that the Court of Appeal heard an application for an order of an interlocutory injunction restraining the respondents, agents or privies from perpetrating and or continuing any further demolition, alteration and or sand filling of houses or land in Maroko and granted the same with orders as follows on 11th February, 1991:
“(i) that the application succeeds in part.
(ii) that the injunction against the re-allocation of Maroko land by respondents pending the determination of the appeal pending in this Court.”
After hearing by the Court of Appeal of the appeal together with the application seeking the committal of the respondents for contempt of the Court of Appeal order of interlocutory injunction made on 11/2/91 and the request to cancel the Certificate of Occupancy issued to Oniru Chieftaincy Family, the Court of Appeal dismissed the appeal and the motion. The appellants appealed to this Court against that part of the judgment which ruled that the issuance of the Certificate of Occupancy by the respondents to Oniru Chieftaincy Family was not a re-allocation of the piece of land affected by that grant and there was therefore no contempt of its interlocutory order made on 11/2/91.
In compliance with the Rules of this Court the appellants and the respondents filed and exchanged briefs of argument. In the amended brief of the appellants the following solitary issue was formulated from the two grounds of appeal filed
” Whether the Court of Appeal was right particularly as the Appeal succeeded to hold that the re-allocation of Maroko Land by the respondent in favour of the Oniru Chieftaincy Family in the con of the Order of Injunction of the Court of Appeal did not violate the Order of Injunction”
The respondents were served with the appellants’ Amended Brief on 18/9/2000. Since respondents did not file an amended brief, I take it that they have adopted the brief they filed on 23/9/96 as their argument in this appeal. In the respondents’ brief, the following two issues were raised –
“1. Whether the Court of Appeal was right to hold that the Certificate of Occupancy and the supplemental deed in favour of the Oniru Chieftaincy Family did not constitute a re-allocation of land.
- Whether it was proper for the appellants to seek the relief of injunction in the particular circumstances of the case having regard to the fact that the Oniru chieftaincy family is neither a party to the application nor to the appeal, and having regard to the fact the order made by the Court of Appeal became spent on the determination of the appeal”
The second issue raised by the respondents did not arise from any of the grounds of appeal filed by the appellants. It will therefore be and is hereby declared incompetent and accordingly struck out by me. The other issue raised by respondents has been adequately covered by the issue in the appellants’ brief. I will therefore adopt the issue in the appellants’ brief for resolving and deciding the appeal.
The thrust of the appellants’ complaint in this appeal is that the respondents were in violation of the order of interlocutory injunction issued against them by the Court of Appeal pending the determination of the appeal in which Okunola J. (as he then was) refused the appellants’ application for leave to enforce fundamental human right which was alleged to have been violated when their Maroko land was compulsorily acquired and forced to vacate the land and their structures thereon demolished. Their request for an interim/interlocutory injunction pending the disposal of the case was also refused by the learned trial judge. It was the submission of the appellants that the Court of Appeal misconstrued the nature of the order it had made when it held through a panel of the same Court differently constituted] that the injunction was not broken by the respondents when they converted the customary right held by the Oniru Chieftaincy Family into a Statutory Right of Occupancy over a piece of land earlier compulsorily acquired but excised and returned to the said Family before the injunctive order not to re-allocate was made by the Court of Appeal.
The summary of the appellants’ argument is contained on page 5 of their brief and is as follows –
“The Res covered by the Injunction not to re-allocate was not simply land; it was also the appellants right to possible repossession and re-allocation if the case ended in their favour. Indeed, the basis of the Injunction was not ownership or possession at the stage the Injunction was issued. So even if the respondents had produced evidence of Customary ownership over Maroko Land when the Injunction was granted it is submitted that the Court of Appeal would still have issued the Injunction.”
In reply to the argument presented by the appellants, the respondents as contained in pages 5 – 6 of their brief, submitted –
“that the said Certificate of Occupancy was to convert the existing customary title (prior to the demolition) of Oniru chieftaincy family over the land to a statutory right of occupancy which they are entitled to by virtue of section 34 of the Land Use Act 1978. The supplemental deed was to correct the error in the survey plan attached to the Certificate of Occupancy.
The Court of Appeal held on page 87 of the Records that “Conversion of their customary title to a right of occupancy under the Land Use Decree 1978 and correction of errors in the description of the parcel of land vested in that family will in my view, not amount to a re-allocation of the land. Re-allocation in the con of the order made by this court means creation of fresh interests which did not exist at the time when the order of this court was made”. In the case of Potter Dabup vs. Haruna Bako Kolo (1993) 9 NWLR (pt. 317) page 254 at page 259 paragraph 7 this honourable court held that “By virtue of section 9(1)(b) of the Land Use Act 1978, a Governor has the power to issue a statutory right of occupancy to a person who is already in occupation of land under a customary right of occupancy and it is not necessary that the prior customary right of occupancy enjoyed by such a person must first be revoked before the grant of the statutory right of occupancy. This is because a grant of a statutory right of occupancy automatically extinguishes all existing right in respect of the parcel of land over which it is granted. The appellant’s contention that customary holdings were inferior to statutory rights of occupancy does not apply in the con of this appeal. It is the submission of the respondents that the Oniru chieftaincy are by virtue of Section 34(1) Land Use Act 1978 deemed holders of a statutory right of occupancy.”
As I have stated earlier in this judgment, the main Issue in contest in this appeal is whether a grant of the Certificate of Statutory Right of Occupancy by the respondents to Oniru Chieftaincy Family which before the grant, possessed the parcel of land in dispute by customary right as far back as 1977, is a violation of the interlocutory order granted to the appellants against the respondents not to re-allocate the land compulsorily acquired by the said respondents.
The vast area known as Maroko was compulsorily acquired by the respondents in 1972 followed by the payment of N6.8 million Naira by the respondents to the Oniru Chieftaincy Family which at the material time held customary title over the area so acquired compulsorily. It was later discovered from sequence of events in this case, that part of the land so compulsorily acquired by the respondents was re-allocated to the Oniru Family in 1977. And on application by the said family, this was adjusted in 1977 by excising the piece of land wrongly included in the survey plan of the vast area of land compulsorily acquired in 1977. It was returned to the Oniru Chieftaincy Family which in 1991 applied for and was granted a Certificate of Statutory Right of Occupancy dated 10/12/91 by the respondents over the same piece of land.
The order of interlocutory injunction granted against the respondents by the Court of Appeal dated 11/2/91 reads –
“i) That the application succeeds in part;
(ii.) That the injunction against the re-allocation of Maroko land by respondents pending the determination of the appeal pending in this court be and it is accordingly granted.”
In interpreting this order, the Court of Appeal opined thus
” ….. within Maroko land the Oniru Chieftaincy Family had as far back as 1977 land vested in them. Conversion of their customary title to a right of occupancy under the Land Use Decree 1978 and correction of errors in the description of the parcel of land vested in that family will, in my view, not amount to a re-allocation of the land. Reallocation in the con of the order made by this court means creation of fresh interest which did not exist at the time when the order of this court was made. On the facts disclosed by the counter-affidavit and on the face of the document which the appellants want cancelled, I am unable to conclude that the certificate of Occupancy And the supplemental deed constituted a re-allocation of land. Since this application can be disposed on this ground which, indeed, is the only Issue taken up by Counsel before us, I shall refrain from giving expression to my doubt as to the propriety of the relief sought in the particular circumstances of the case having regard to the fact that the Oniru Chieftaincy family is neither a party to the application nor, understandably, to the appeal; and having regard to the fact that the order made by this court became spent on the determination of the appeal.”
I am in complete agreement with the opinion of the Court of Appeal quoted above.
The original application for enforcement of the appellant’s fundamental human right vis-a-vis compulsory acquisition by the respondents of the land in Maroko was dated 11/7/90. On 16/7/90 the trial court refused the application inclusive of the prayer for interim/interlocutory injunction. Hence the appeal to the Court of Appeal.
The Court of Appeal granted, pending the determination of the appeal, an interlocutory order against the respondents not to re-allocate the land compulsorily acquired by them. At the time the Court of Appeal made the order on 11/12/91 the portion of land over which the Statutory Right of Occupancy was granted, was no longer in possession and control of the respondents as same had already been exercised and returned to the Oniru Chieftaincy Family. So the Court of Appeal’s order could in no way be interpreted to affect this piece of land, more especially when the Oniru Chieftaincy Family was not a party to the action.
In my view the Oniru Chieftaincy Family were free and entitled to have made the application for the statutory right of occupancy and the respondents were equally right to have granted it. The court cannot make an order against a person who is neither a party or privy to a proceeding before it. Despite the ingenuity of the argument presented by learned Counsel for the appellants, I find no fault in the decision of the Court of Appeal. The appeal fails and it is hereby dismissed with N10,000.00 costs to the respondents.
SC.153/1995
